Majority
p. 644In the Matter of the Judicial Accounting of Robert W. Taylor, Ex’r.[1] (Supreme Court, General Term, First Department, Filed November 18, 1892.)
Headnote
Death—Pkesumption op.The presumption of d'eath without issue does not arise from the mere fact of absence without being heard from for eleven years, in the case of an illiterate girl of eighteen, who had been unruly and of drinking habits.
Appeal from certain parts of the decree made and entered by the surrogate of New York county in this matter.
The facts are fully stated in the surrogate’s opinion, SO St. Rep., 212.
H. Major, for app’lt; George B. Ashley, for resp’t.
The following facts appeared before the surrogate : One Ann Eliza Miller died in the city of New York in the fall of 1882. By her will she gave the income of a fund of $20,000 to her mother for life; and the fund itself, upon the death of her mother, to the children then living of her three brothers, Andrew, David and John Mann, to. be distributed among such children equally. The mother died in September,
1888, and in December following the executors and trustees under the will filed with the surrogate their verified account, with a pe
p. 645
titian for its judicial settlement, in which it was stated, among other things, that owing to the death of the mother the said trust fund was ready for distribution. Citations were issued and served upon all interested parties, either personally or by publication, and the account and objections were sent to a referee. On the coming in of his report, it was referred back to the same referee to try and determine the question whether Ann E. Wilcox and Ellen Dale Mann, two daughters of David A. Mann, one of the brothers of the testatrix named in the will, were alive at the time of the* decease of the mother. Upon the hearing before the referee, Ann E. Wilcox, whose married name was Oonkling, appeared, and proved her identity. Ellen Dale Mann did not appear, and the referee found that she had absented .herself for a period of eleven years, and had not been heard from in that time ; and it was therefore presumed that she had died before the mother of the testatrix, without issue. This finding as to Ellen Dale Mann was overruled by the surrogate, and a decree entered deciding that she was still alive, and that one-third of the above mentioned fund should be paid to and divided between her and her sister, the appellant, equally, and from the surrogate's decree, in so far as it so decides, this appeal is taken. Upon an examination of the grounds upon which the learned surrogate based his decision, we see no reason for differing with the conclusion arrived at by him ; and, therefore, think that, for the reasons stated by the learned surrogate, the part of the decree appealed from should be affirmed, with costs.
O’Brien and Lawrence, JJ., concur.